Creating Confusion: The Tenth Circuit's Rocky Mountain Arsenal Decision

• Author: Ensign Jason K. Eaton
• Pages: 04

In United States v Colorado, the United States Court of Appeals for the Tenth Circuit (Tenth Circuztj recognized states' authority to enforce their hazarhus waste laws at Superfund sites In doing so, the Tenth Circuit refused to fdlozc unanimous precedent jrom the other circuit courts, which steadfastly had refused to hear claim dealing with Superfund sites because the Comprehemzue Envtron-mental Response, Compensation, and Lmbilzty Act (CERCI& precludes pre-eMoforcemat revim sf "challenges" to cleanups. ?%e Tenth Circuit3 analysis opens the courthouse doors, however to mw than just states. Under the Tenth CiTmtt k reasoning any pramte party would be able to assert state iau clazms impacting Super-fund sites owned by both the federal government and pvimte parties. The decision also draws attention tG the ill-defined roles that federal and. state gowernmants have assumed regarding hazardous wmte cleanups. U@ortunately, the 7bnth Circuit's decision rcill not lead to speedio; moreproducti~e cleanups. Instead, Lnited States I

Colorado appears to add yet another delay mechanm into Super-fund cleanups This arttcle aduocates amending the CERCZA to vestwe its role as the mtion's leading %ate remedial statute

Vagueness, contradiction, and dissembling are familiar feature8 of environmental statutes, but CERCLA is secure in its reputation as the worst drafted of the lot

Even the child psychologists tell us that uncertainty abour rules is not always good for us and that it does not improve our temperaments. our character, or our ability to get along with others

*Judge AdvOCBfe GeneraVs Corps, Lnired Stater Kava1 Resene Currently msrmied fa N a d Resene Readiness Center, Ponland, Oregon B A 1892 Cnlverilty of Anrana. J D , uifh env~ronmentallaw cemficate. expected 1985 Leals & Clark College Uorrhwesrern School af Law The author alihes to thank Profenlor Wrlham Funk for his valuable comment3 and asa~ifance

1 WILLIAM H ROWEPJ, Euilno\mh~~r.

La% HIIABWLS U'Lsrrs IVD S~srnrc~s

*Carol M Rose C~vstaisand Mud in PmpwLy Law, 40 S n r L RE$ 677 608

(19881

LllIl98Sl

I. Introduction

Closing United Scares military bases3 involves more than lack-mg the gates and collecting a "peace dividend'' on the way out. Once the military has left town, local governments must confront large worker displacements and burgeoning gaps in their economies. The one thing the military cannot take with it-the bases themselves-often become toxic headaches. The military has responded to this dilemma with an awessive cleanup program. The Cold War's demise, along with heightening environmental awareness, has spurred cleanup efforts at more than 20,000 contaminated sites situated on about 2000 military bases and Department of Energy (DOE) piants The Pentagon's allocation for environmental cleanup pro) ects at operating and closed bases grew from $500 million in 1989 to $2.2 billion in 1993.6The total amount budgeted for federal facility cleanup in 1993 is nearly $10 billion-almost $3 biiiion more than the Environmental Protection Agency's (EPA) entire budget6

Even with this monumental spending, much remains to be done. The Department of Defense (DOD) has completed cleanups at slightly more than two percent of the 17,000 sites it has assessed thus far.' Faced with prolonged cleanups at federal facihties,S states eagerly seek involvement m the remedial process through the appli. cation of state hazardous waste laws. "It is important for states to protect their right to exercise independent authority to get the cleanup work accomplished effectively:' according to Colorado Gov-ernor Roy Romer (D).O He should know. Colorado possesses two of the nation's worst hazardous waste sites: the DOE'S Rocky Flats

3Wdham E Clayton. Jr. Swvrd and ab Olire Bmnch Clinton AccwpB Bases Ldl. but Offms A//e/fdArem Federal Aid Io Eosr the Pam HorSmV CMnm , July 3. 1883 alAlO

*Cleaning (;p Federal Fmzlltzes' Controversy mer an Envlironmenlol Peooe B a i h d , 23Env't Rep (BUA) 2669 2560(Feb 5, 1893)sld When the Depanmenr of Defense's envlr~nmenfal compliance budget 13 meluded, the fiscal 1083 enwranmenlai budget mea to 54 4 billion. heludlng S I bilhon Congress approved in 1892 for spending throughout Ii$caI 1093 A ~maller rate of increane m the envicanmenlai restoration budget ran seen in the DOEfor the Same perlad In 1068, the DOE spent $1 7 billon. By 1883. that amount had grown m $6 6bihon. oufafanentireDOEbudgetof$17millian Id at2660-61eld at2660'Id. at 2619, 2662 See a h

H - Y ~

Wasfe. .Much Wmh Revrains to Acceler-a& Fm1ll.v Cleanwr, G h 0 IR

C E D -83-15 (General Aecaunlrng Offlee. Jan

8FFederal agencies are forbidden from suing other federal agencies OF issuing one another unllaferal order3 under the Depanment of Justiee'i 'unitary policy the ory"Malneu DepanrnenfafKa~Y,702F Supp 322n8(D hle 1988)

BCoiomdD Oovrrnm Asis States iD Li'w US. AgoinsC Amral. Env%I. Pol'? Alert, oet 13. 1983, at 9

1993)

nuclear aeapons plant and The United States Army's Rock) Moun-tain Arsenal.

These two sites illustrate contrasting approaches to state involvement in federal facilitr cleanups The Rocky Flats cleanup represents the Cypicsl federal-state arrangement. manifested bg an Interagency Agreement between the EPA. the DOE (the federal agency responsible for the site), and the state 10 This approach sym boiizes the "uneasy iruce" that states have with the federal govern-ment at federal sites." "In the past. we hare had disagreements with the federal government over whether state laws apply at federal facilities," said Ohio Assistant Attorney General Jack Van Kiey, "but it has never come TO open warfare."1z

Colorado, having encountered the traditional approach, opted far "open wadare" over the Rocky Mountain Arsenal The state dragged the Army into court, seeking a declaration that Colorado had authority to enforce its hazardous waste laws at the Superfund site.13 The state wan the first round because the United States had nor placed the Rockg Mountain Arsenal on the lis1 of the most hazardous sites eligible far Superfund cleanup 14 The EPA then put the Rocky Mountain Arsenal on the 11s of Superfund ''uorst" sites.1i and sued the state in the Vnited States District Court for the District of Colorado (Colorado District Court). The United Stares sought. and received, a declaratmn that Colorado had no authority to impose ICE

laws on the federal facility.16 The Tenth Circuit. in a watershed decision, reversed the Colorado District Court and found for the state

This article examines Colorado's victory. Part I1 examines America's hazardous waste laws and the substance of the United States L Colorado decision Part Ill analyzes the case's unfortunate impact on Superfund sites Finall>-, Part 11' recommends that Con- '"Federal Fanitties Ap~eok C a r t Cion& CoiaradD Authority to RWulaiP Day---Day Waste .Manoypmanl 23 Enrt Rep (Bhi) 3161 3162 (.4pr 16. 1993) (heremafter Federal Fanl?fiisl

-'States, Federal Goimmant Cooprrate on Federal Facziriy Cleanups Safer Soy. 24 Enr t Rep (BNA) 46 (Ma) 14 19931

l l l i

~li

IaColorado r Depanmenr of Arm), 707 F Supp IS62 (D Colo 1989) Super-fund also LI knoan &! the Camprehenlive Eniiranmental Response Cornpenranon and Llabllin Act of 1980 ICERCMI. Pub L No 86-610 94 Stat 2767 leodlfled SIamendedat'42U SC 559601-8675(1988%Su~~

111988)

iectmn 12O(a)(4). Iimifriliawnappllcafiontocite.rhar me lmedanrhe NPL

"Coiaroda c Dgarlmanl qidrmy. 707 F Supp at 1662 The CERCLA In

"54Fed Reg 10.612(19881

"Unired States > Colorado 1991 WL 193 519 (D Colo 18911 ?et d in port.

lrUmredSrater\ Colorado. 99OF2d 1566(lOthCa 1993) QQUFZd1565(LOfhCs 1993) cerl denied. 114CS 922(10941

19941 ROCKY MOUNTAIN ARSENAL 129gress amend the CERCLA to ensure that the act retam its role as the nation's principal hazardous waste remediation statute.

11. The Rocky Mountam Arsenal

1. America'sHarardow Wosteh~s

   Amenca's hazardous waste management laws revolve around two key statutes. The first to appear was the Resource Conservation and Recovery Actla (RCRA), which established a "cradle-to-grave" regulatory scheme.18 The RCRA's scope includes the identification of hazardous wasteS,ZO a manifest System to track waste movement,Zl and a permit structure22 to enforce standards for operators of waste storage facilities.23 The EPA may order facilities treating, storing, or disposing hazardous wastes to clean up releases 24 The law allows

   the EPA to authorize states to implement their hazardous wwte pra-grams in lieu of the RCRA.26 State programs must meet certain minimum federal standards before the EPA may authorize their use,2e but these programs may adopt more stringent standards for the disposal, treatment, and storage of hazardous Authorized state programs "have the same force and effect as action taken by the [federal government]."26 The federal government must comply with the RCRA "to the same extent as any person. . ."ze

   Not long after Lt passed the RCRA, Congress was confronted with the act's shortcomings The Love Canal disaster of 197830

   'BRerourceConserranonand Recover?. Act of 1876 (RCRA), 42 US C. §§ 6801- )OH R REP Uo 1016(1). 06th Con8 , 2d Seis 17 (1880). rarin&d in 1880

   '042L'SC 56821(1888) slid $8 6922-6823'*Id § 69242ald

   6982k(l888)

   US C.C A 6 6118 6120

   181d 8 6861W TheUniredStatesSupreme Court hsr heldthaf federalagencies me immune from ifate civil penalties under the RCRA Depanrnent af Enera v Ohlo. 112s CI. 1627, 1638-40(1882)

   3aResldenfi of the Lore Canal area builr them homes on Lop of a ehemlcal dump, which resulted m their baJemenfs flung with 'chemlcal soup'' dunng runs RoaEnr V PEnar~l El AL, EN\IPIOYYEYIAL REOLUTIm La*,

   SCIENCE. A\D PYL~CI 288

   (1992)

   spurred Congress to enact the CERCLA of 1080 31 "The statute mas

   passed hastily by Congress as campromise legislation (between three bills] after very limited debate under a suspension of the rules' 32

   Congress's rush led to ''7 aguels -drafted P~OVLSLO~Sand an indefinite.

   If not contradictory legislatire history"33

   The...